Freedom of Speech Contents

Conclusions and recommendations

The scale of the problem

1.Any inhibition on lawful free speech is serious, and there have been such incursions, but we did not find the wholesale censorship of debate in universities which media coverage has suggested. There are real problems which act as disincentives for students to put on challenging events and whilst most student union officers who responded to our survey (comprising 33 responses in all) say they are confident that they and their companions can speak freely, such disincentives could be having a wider ‘chilling effect’, which is hard to measure. A much broader survey of students’ opinion would be needed to assess levels of confidence amongst the student body as a whole. (Paragraph 37)

No platforming policies

2.Student groups are not obliged to invite a particular speaker just because that person wants to speak at the university, or to continue with an invitation if they freely decide they no longer wish to hear from a particular person. Speakers are at liberty to decline to share a platform with those they oppose. Speakers can also decline to attend events if they do not wish to comply with conditions (including reasonable conditions such as lawful speech or being part of a balanced panel). None of these is an interference on free speech rights. However, the imposition of unreasonable conditions is an interference on free speech rights. We do not, for example, consider it a reasonable condition that, if a speaker gives an assurance that their speech will be lawful, they be required to submit a copy or outline of their speech in advance. (Paragraph 41)

3.In our view, freedom of expression is unduly interfered with:

It is clear that, although not widespread, all these problems do occur and they should not be tolerated. (Paragraph 42)

Intolerance towards some groups and issues & disruptive protests

4.Students and student union representatives have the right to freedom of association and expression, which are protected by Article 10 and 11 of the ECHR, and can cover forms of peaceful protest. However, it is unacceptable for protestors to deliberately conceal their identities, break in with clear intention to intimidate those exercising their rights to attend meetings or to seek to stop events. Universities have a statutory duty to initiate disciplinary measures if individual students or student groups seek to stop legal speech, or breach the institution’s code of conduct on freedom of speech. The police should take appropriate action against individuals committing criminal acts in the course of protests. (Paragraph 50)

5.There are, quite properly, legal restrictions on speech. Where speech leads to unlawful harassment of individuals or groups protected by the Equality Act 2010, then this is contrary to the institution’s duty to have due regard to the need to eliminate discrimination, and would be unlawful. Mutual respect and tolerance of different viewpoints is required to hold the open debates that democracy needs. Nonetheless the right to free speech includes the right to say things which, though lawful, others may find offensive. Unless it is unlawful, speech should normally be allowed. (Paragraph 54)

Safe spaces

6.Whilst there must be opportunities for genuinely sensitive and confidential discussions in university settings, and whilst the original intention behind safe space policies may have been to ensure that minority or vulnerable groups can feel secure, in practice the concept of safe spaces has proved problematic, often marginalising the views of minority groups. They need to co-exist with and respect free speech. They cannot cover the whole of the university or university life without impinging on rights to free speech under Article 10. When that happens, people are moving from the need to have a “safe space” to seeking to prevent the free speech of those whose views they disagree with. Minority groups or individuals holding unpopular opinions which are within the law should not be shut down nor be subject to undue additional scrutiny by student unions or universities. (Paragraph 60)

Prevent duty

7.We note the clarity brought by the judgment in Salman Butt v Secretary of State for the Home Department, which affirms the legality of the Prevent duty guidance for Higher Education, clarifies that the type of speech to which the guidance applies is that which risks drawing people into terrorism and explains how the Prevent duty has to be balanced against the statutory duty to secure freedom of speech. It is unfortunate that the Guidance is not clear on its face without users also having to separately know that they need to refer to the case law. We recommend that the guidance is brought up to date to reflect that judgment and that the Government review its definition of extremism in all official documents, in light of the judgment. (Paragraph 69)

8.The Committee strongly endorses the need for Prevent as a strategy for preventing the development of terrorism. However, the Committee said in 2016 that rigorous and transparent reporting is needed to dispel myths about Prevent and called for an independent review of the Prevent policy in its report on Counter Extremism. We repeat that recommendation; we consider any such review should include an assessment of the Prevent duty’s effectiveness in higher education, and its impact on freedom of speech and association. Such a review should also include consideration of whether Prevent duty reports should be published, and on what basis. (Paragraph 78)

Charity Commission’s regulation of student unions

9.Concerns on the part of student unions about Charity Commission powers, and about whether they risked ‘ultra vires actions’ (which appeared to be prompted by the Charity Commission’s guidance) have more impact, and misunderstandings are more widespread, than we had anticipated. The Charity Commission is under a legal obligation to regulate charities, and does so through guidance, but its current approach does not adequately reflect the important role student unions play in educating students through activism and debate. Moreover, the generic guidance on protecting a charity’s reputation does not place due weight on the fact that inhibiting lawful free speech can do as much damage to a student union’s reputation as hosting a controversial speaker. We welcome the fact that the Charity Commission has told us it will reassess its approach. We make further recommendations about this below. (Paragraph 85)

10.We understand that the Charity Commission may be impelled to act if other regulators or universities themselves do not. We also accept that in some cases a Charity Commission inquiry could be more appropriate than, for example, a police investigation. Nonetheless, the Charity Commission should be careful to ensure its actions are proportionate, are understood by student unions, and do not unintentionally inhibit lawful free speech. (Paragraph 86)

Bureaucracy

11.Universities must strike a balance to ensure they respect both their legal duty to protect free speech and their other legal duties to ensure that speech is lawful, to comply with equalities legislation and to safeguard students. It is clearly easier to achieve this if debate is carried out in a respectful and open way. But the right to free speech goes beyond this, and universities need to give it proper emphasis. Indeed, unless it is clearly understood that those exercising their rights to free speech within the law will not be shut down, there will be no incentive for their opponents to engage them in the debate and challenge needed to bring mutual understanding and maybe even to change attitudes. (Paragraph 91)

12.It is reasonable for there to be some basic processes in place so that student unions and universities know about external speakers. Codes of practice on freedom of speech should facilitate freedom of speech, as was their original purpose, and not unduly restrict it. Universities should not surround requests for external speaker meetings with undue bureaucracy. Nor should unreasonable conditions be imposed by universities or student unions on external speakers, such as a requirement to submit their speeches in advance, if they give an assurance these will be lawful. (Paragraph 93)

13.We welcome the fact that many universities are prepared to fund the security necessary to ensure controversial speakers can be heard in safety. Where feasible, if security is needed to ensure a legal event can proceed safely, it should be provided so the event can go ahead. Such security should be adequate according to the risks envisaged. Effective action should be taken against protestors who themselves go beyond the law. The more it is accepted that the right to protest is vital, but does not extend to intimidation or attempts to close events down, the less burdensome this will become. (Paragraph 95)

The way forward

14.We welcome the OfS’ strong support of free speech. We would expect the OfS to intervene if problems emerged at particular institutions. They should ensure that university policies do not inhibit legal free speech and are not overly burdensome. To help facilitate this, the OfS should have an accessible means of feedback for students to report incidents of intimidation and issues related to free speech, on which the OfS could act as an arbiter between the students, student unions and universities. The OfS should also visit universities that have faced issues regarding freedom of speech, and ensure universities and student unions are respecting this right. The OfS should report annually on free speech in universities, including naming when universities have been non-compliant with their responsibility to secure free speech, under the Education Act 1986. (Paragraph 98)

15.It is welcome that the Government is taking a broad look at the policy context for freedom of speech, and that the Minister plans to hold a summit with key bodies to work out where responsibilities lie and how all bodies can work together to promote freedom of speech. The Government should ensure that all bodies with an interest in this area, such as the EHRC, are included in this summit to ensure a joined-up approach across the different bodies. Moreover, although we understand that this is a complex area, the Government should consider whether there is any case for the OfS to take over the regulation of student unions rather than the Charity Commission. (Paragraph 100)

16.This dialogue, and intervention to ensure that the Government itself and associated regulatory bodies are working coherently, is long overdue. The Government should ensure that all relevant organisations are included in this process. Both the Prevent duty guidance for higher education institutions and the Charity Commission guidance to student unions should be reviewed. The Government should take the lead in encouraging all the bodies involved in this field to produce coherent, consistent and accessible guidance and material by January 2019 at the latest, paying full attention to the extent of universities’ legal responsibilities to secure free speech. (Paragraph 101)

17.The OfS will not take up its full regulatory role until 2019. In the meantime, clear guidance on the importance of free speech and in the legal restrictions upon it is needed. We have ourselves published guidance to assist student bodies and societies, universities (and the Charity Commission) which need to decide where the boundaries lie, and we have annexed it to this report. (Paragraph 102)





Published: 27 March 2018 by authority of the House of Commons and House of Lords